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Coeburn's mayor/manager

From the Coalfield Progress, Aug. 16, 2013

R.J. ROSE
Contributing Writer

COEBURN — Councilman Jeff Kiser alleged during Monday's regular session that Mayor Jess Powers and two other councilmen held an unannounced meeting in July that did not conform to Virginia's open meeting law.
Powers' defense was that he was acting not as a council member but as the interim town manager, meaning the July 28 meeting was not a violation of law.
Town Attorney Gary Gilliam acknowledged council needs to be careful not to bring three or more members together and discuss town business unless they advertise it first.
Further, the executive director of the Virginia Coalition for Open Government says that whenever a town council member conducts town business, the person remains a council member and is required to follow the Freedom of Information Act.

MEETING DISCUSSION
When council voted Monday to adopt the minutes of the regular July meeting and workshop, Kiser asked why the minutes from a July 28 meeting were not included.
When asked to elaborate, Kiser said Powers, Vice Mayor Charles Kiser and Councilman Veronica Buchanan met with the swimming pool's staff to address a complaint about a July 25 incident.
According to state law, Kiser noted, any time three or more council members meet to discuss town business, that is a public meeting which must be called and advertised, and minutes must be taken. The meeting was not called, he was not made aware of it and, apparently, no minutes were taken, he said.
Powers, who council appointed as interim town manager in April, responded that it was not a called meeting. He was not acting as a town council member but as interim town manager during the meeting, he said, meaning only two council members were there. That is allowed without calling a public meeting, he said.
This was an administrative function of the town manager, and pool staff work for the manager, not the council, Powers said.
Kiser countered that since Powers is an elected council member, it was a meeting no matter what title he uses.
Kiser asked town attorney Gilliam for his opinion.
Gilliam mentioned a meeting last year in which Maria Everett, executive director of the Virginia Freedom of Information Advisory Council — a state agency — advised council about how to follow the law. Gilliam said council needs to be careful when three or more members are present to not engage in town business. Just because they are together doesn't make it a meeting — if they don't discuss town business.
It would be best to give notice of a meeting, Gilliam said.
He added that he doesn't know whether Powers can separate his elected role from the interim town manager's role as Powers described.
Powers said what was being called a meeting was an administrative function to investigate a complaint made by Jeff Kiser.
In a later interview, Powers explained that the complaint involved somebody’s perception of what a 50-year-old woman can wear to the pool. He said he asked the female lifeguards if they thought the attire was inappropriate and they said no. He said that he, Charles Kiser and Buchanan acted appropriately and responsibly.
Earlier in the meeting, Kiser moved to add the pool complaint to the agenda, specifically asking for discussion about pool policies and procedures. Powers argued that it was a personnel issue. Kiser said he didn’t want to discuss individuals, but wanted to know if the pool has a manual of policies and procedures and what those policies are. His motion died for lack of a second.
Kiser said this was his third request to put the subject on the agenda. Citing the meeting with Everett, he said any item a council member wants on the agenda should go there, and a majority of council can vote to remove it. He said he emailed his request to Powers twice before Monday's meeting.
Later in the night, Powers read information from the Virginia Municipal League stating that a mayor can influence what goes on the agenda.
Kiser said a citizen called him with a pool complaint when she couldn't reach Powers, and that Kiser simply passed the complaint along. But Powers said he was available at town hall, and that the citizen called the police department asking specifically for Kiser. According to Powers, the citizen was not a registered pool patron that day and must have complained by hearsay.
Kiser reiterated the need for council members to either limit in-person town business to two members or advertise a meeting.
Charles Kiser and Councilman Carles Collins said pool staff report to the town manager, not to council. Jeff Kiser said that if that is the case, Powers should have investigated the complaint himself or with one other council member.
Buchanan said that for years while she was a town employee, three council members attended the same church and that wasn’t considered a meeting. Kiser said they were not meeting at church to conduct town business.
Buchanan responded that the pool complaint was a personnel issue, not town business, and that personnel issues should not be discussed in public meetings.

INTERPRETATION
According to Virginia law section 15.2-1423, if a town has no chief administrative officer, it is the duty of the mayor "to see that the functions" of a chief administrative officer "are carried out if the governing body has not acted otherwise."
However, state law says nothing to indicate that when a mayor is seeing to those functions, that person ceases to be counted as a council member for the purposes of open meeting law.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, was asked to comment.
Formed in 1996, the non-profit coalition consists of citizens, local and state government officials, legislators, news media representatives and educators, and it exists "to promote expanded access to government records, meetings and other proceedings at the state and local level."
"Three members of a public body talking about public business is a public meeting. Period," said Rhyne. "It doesn't matter what capacity they are meeting in — as a committee member, mayor, interim manager, whatever. They are three members of the same public body and they are talking about that public body's business. That is a meeting, and (the Freedom of Information Act's) notice provisions should be followed."
In an interview Wednesday, Powers said council appointed him as interim town manager and he was acting in that assigned role to investigate the incident. He said he acts out his assigned role as mayor during council meetings and ceremonial events, but puts on his town manager hat for administrative needs.
As Powers sees it, this is no different than when he takes part in a Kiwanis club meeting where he is the club's president. He's not there as Coeburn's mayor.
Pool employees are under the authority of the town manager, not council, he said — therefore, he could ask them questions as the manager but not as a councilman.
If so, Powers was asked, why did council members need to be present?
Charles Kiser was already there, delivering pool supplies, he said. Powers asked Buchanan to be there since the incident involved a woman and he thought a woman's perspective was necessary.
This is another example of one council member with a history of making trouble for council, Powers said in reference to Jeff Kiser. Powers cited Kiser's previous accusation of an illegal meeting between council members and the former interim police chief.
The chief operates under council's authority, making it appropriate for council to meet with him, Powers said. Pool staff report to the town manager, so it was appropriate for him to address that issue as the interim manager, he said.
Powers was asked to respond to Megan Rhyne's comments.
He said he doesn't think she fully understands the circumstances, and he is of a different opinion. "Who else is going to conduct council business when a complaint is made? That is the duty of the town manager."